Killian v. Concert Health Plan

In the

United States Court of Appeals
For the Seventh Circuit

No. 11-1112

JAMES E. K ILLIAN, as Independent Administrator
of the Estate of Susan M. Killian,
Plaintiff-Appellant,
v.

C ONCERT H EALTH P LAN, C ONCERT H EALTH P LAN
INSURANCE C OMPANY, R OYAL M ANAGEMENT
C ORPORATION H EALTH INSURANCE P LAN, and
R OYAL M ANAGEMENT C ORPORATION,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 4755—Marvin E. Aspen and Gary S. Feinerman, Judges.

A RGUED S EPTEMBER 29, 2011—D ECIDED A PRIL 19, 2012

Before R IPPLE, M ANION, and S YKES, Circuit Judges.
M ANION, Circuit Judge. After discovering that she
had lung cancer that had spread to her brain, Susan M.
Killian sought the advice of a doctor whom she trusted.
On that doctor’s recommendation, Susan underwent
2 No. 11-1112

aggressive treatment. Unfortunately, the treatment was
ultimately unsuccessful and she died a few months later.
By that point Susan’s husband, James E. Killian, had
received numerous medical bills for the cost of Susan’s
treatments. James submitted those medical bills to
Concert Health Plan Insurance Company, Susan’s health
insurance company, for reimbursement, but was denied
coverage on most of the expenses because the provider
that the Killians had used was not covered by Susan’s
insurance plan network. James ultimately filed suit,
seeking benefits for incurred medical expenses, relief for
a breach of fiduciary duty, and statutory damages for
failure to produce plan documents. At the summary
judgment stage of the case, the district court dismissed
James’s denial-of-benefits and breach-of-fiduciary-duty
claims, but awarded him minimal statutory damages
against the health plan administrator. James has ap-
pealed. We hold that the district court properly granted
summary judgment on James’s denial-of-benefits and
breach-of-fiduciary-duty claims, but incorrectly cal-
culated James’s statutory damages award. We therefore
affirm in part and remand in part, with instructions
outlined below.

I.
Susan Killian’s employer, Royal Management Corpora-
tion, entered into an agreement with Concert Health
Plan Insurance Company to provide group health insur-
No. 11-1112 3

ance coverage to all of Royal Management’s employees.1
This agreement became effective on July 1, 2005. Under
the agreement, Royal Management was named the plan
administrator for the Royal Management Corporation
Health Insurance Plan (the “Royal Plan”). Concert was
named the claims review administrator, a title that in-
cludes the “full and exclusive discretionary authority to:
(1) interpret [Royal Plan] provisions; (2) make deci-
sions regarding eligibility for coverage and benefits; and
(3) resolve factual questions relating to coverage and
benefits.” Concert was also listed as the Employee Re-
tirement Income Security Act (“ERISA”) claims review
fiduciary.
The Royal Plan offered three different options from
which employees could choose. Susan enrolled in the
Royal Plan and selected insurance coverage option
“SO35.” All three Royal Plan options afforded partici-
pants access to lower-cost medical services by health
care providers that were deemed to be within a given
network—namely, providers with whom Concert had

1
A not-for-profit corporation named Concert Health Plan
provides administrative services for health plans issued by
Concert Health Plan Insurance Company. James Killian named
both of these entities as defendants; however, the district court
dismissed Concert Health Plan from this suit with prejudice
because James “failed to come forward with specific facts
sufficient to raise a genuine question as to [Concert Health
Plan’s] involvement.” James does not appeal this decision;
therefore, our use of “Concert” in this opinion will refer only
to Concert Health Plan Insurance Company and we will not
discuss Concert Health Plan’s involvement further.
4 No. 11-1112

negotiated for lower fees. The SO35 option that Susan
selected was included as part of the PHCS Open Access
network of service providers. In documentation re-
ceived after enrolling in the Royal Plan, employees—
including Susan—were cautioned that, “to avoid
reduced benefit payments, obtain Your medical care
from SELECT providers whenever possible.” Additionally,
employees were admonished that, “[t]o confirm that
Your Hospital, Qualified Treatment Facility, Qualified
Practitioner or other provider is a CURRENT participant
in Your SELECT provider Network, You must call
the number listed on the back of Your medical identi-
fication card.”
By February 2006, Susan was suffering from persistent
headaches and a severe cold. Susan sought treatment
from her primary care physician who ordered a CT scan.
The CT scan’s results were haunting: Susan was diag-
nosed with lung cancer that had spread to her brain.
She was admitted to Delnor Community Hospital by
direction of her primary care physician; after five days,
she was told that her brain tumors were inoperable.
Desiring a second opinion, the Killians contacted
Rush University Hospital and Dr. Philip Bonomi to set up
an appointment. Susan was familiar with Dr. Bonomi
because he had treated Susan’s daughter several years
earlier. Besides their familiarity and apparent comfort
with Dr. Bonomi, the Killians had no other reason
for seeking him out.
Susan’s appointment with Dr. Bonomi was scheduled
for April 7, 2006. The Killians did not ask either Concert
No. 11-1112 5

or Royal Management about whether the treatment
provided by Dr. Bonomi or Rush University Hospital was
within the PHCS Open Access network of providers.
Indeed, James averred that neither he nor Susan
inquired about whether Susan’s treatment by Dr. Bonomi
or Rush University Hospital was in-network before
Susan’s appointment on April 7. Further, James testified
that Susan and he would have sought a second opinion
from Dr. Bonomi regardless of whether he was in the
PHCS Open Access network.
When the Killians arrived at Rush University Hospital
for Susan’s April 7 appointment, they first saw a neuro-
surgeon by the name of Dr. Louis Barnes, to whom
they had been referred by Dr. Bonomi. Dr. Barnes told
the Killians that one of Susan’s tumors had to be
removed immediately. According to James, “Dr. Barnes
stated [that] if he didn’t take the tumor [out of Susan’s
brain] she would be dead within five days.” At that point,
as Susan was being processed for admission to Rush
University Hospital, James called Concert at a toll-
free number he found on Susan’s medical insurance
identification card. There were three toll-free numbers
on Susan’s card: one to determine provider participa-
tion; one for customer service or utilization review; and
one for prescription drug service. James testified that
he first called the “top number” (the provider-participa-
tion number).
During this initial call there was some confusion
between James and the Concert representative regarding
the name of the hospital to which Susan was being ad-
6 No. 11-1112

mitted. James kept referring to St. Luke’s Hospital and
the representative was not aware of a hospital by that
name. (Apparently that was the name of the hospital
some years earlier.) She told James to call back later, but
then she told him to “go ahead with whatever had to
be done.” When he did call back he dialed a different
number—the customer service/utilization review num-
ber. Despite having dialed a different number, James
apparently reached a representative who knew of his
earlier confusion about the hospital’s name. James told
this second representative that “I’m trying to get con-
firmation that we are going to be—my wife is going to
be admitted to Rush.” That representative said,
apparently in jest, “Oh, you mean St. Luke’s.” After
chuckling with someone seated near her (presumably
another representative who was familiar with James’s
first phone call), the second representative said, “You
mean Rush Presbyterian.” James replied, “Oh, okay.
That is what they are calling it.” He then stated, “Susan
is going to be admitted,” to which the representative
responded, “Okay.” Importantly, during neither phone
call did James and the two Concert representatives
discuss whether Susan’s treatment at Rush University
Hospital by Dr. Barnes was within the PHCS Open
Access network of providers.
Shortly after she was admitted to Rush University
Hospital, Susan underwent surgery and was hospitalized
from April 7 to April 12. Following her discharge from
Rush University Hospital, Susan saw Dr. Bonomi “one
or two times” for outpatient care. In June 2006, acting
on orders from Dr. Bonomi, James again took Susan to
No. 11-1112 7

Rush University Hospital on suspicion that she might
have pneumonia. Susan was admitted and was hospital-
ized for nine days. After Susan was discharged, she
tried chemotherapy but could not tolerate the treatment.
Susan died in August 2006.
During the months Susan battled cancer, the Killians
received several Explanation-of-Benefit invoices from
Concert that detailed medical claims that Concert
would not cover because the treatment Susan received
was by out-of-network providers. These out-of-network
medical expenses totaled approximately $80,000. On
July 31, 2006, James wrote to Concert’s Claims Depart-
ment, explaining Susan’s dire health status and citing
provisions in her Certificate of Insurance that James
believed were inconsistent with Concert’s rejection of
Susan’s claims. Concert replied in two letters dated
September 19 and 20, 2006, reiterating that the
claims referenced in its Explanation-of-Benefits
invoices were out-of-network and, therefore, the
Killians were individually responsible for the maximum
allowable fee. James requested further review, which
was referred to Concert’s Appeals Committee. On Octo-
ber 25, 2006, the Committee issued a ruling largely af-
firming Concert’s denial of benefits; however, the Com-
mittee agreed to process one claim at the in-network
fee level because that claim was based on emer-
gency treatment for pneumonia that Susan received in
June 2006.
James Killian, acting in his capacity as the administrator
of Susan’s estate, filed suit in August 2007, in the Northern
8 No. 11-1112

District of Illinois, Eastern Division. James amended
his complaint twice, each time adding more parties and
causes of action. Ultimately, James alleged three viola-
tions of the ERISA, 29 U.S.C. §§ 1001, et seq.: (1) a denial-of-
benefits claim against the Royal Plan and Concert; (2) a
breach-of-fiduciary-duty claim against Royal Manage-
ment and Concert; and (3) a statutory-penalties claim
against Royal Management for failure to provide insur-
ance plan documents.2
This case was first assigned to District Judge Marvin E.
Aspen. At the close of discovery, both Royal Manage-
ment (for itself and for the Royal Plan) and Concert
moved for summary judgment on all of James Killian’s
claims. Judge Aspen granted Concert’s motion in its
entirety and granted Royal Management’s motion in
part. Judge Aspen stated that James’s denial-of-benefits
claim hinged on whether the communications James
received from Concert concerning the denial of Susan’s
claims “substantially complied” with ERISA require-
ments. Importantly, Judge Aspen noted that James
did not contest Concert’s denial of benefits on the
merits; “[t]hat is, [James] does not contest [Concert’s]
conclusion that no further benefits were payable because
the health care providers at issue were out of Susan’s
network.” Although he found that Concert’s notification

2
As explained in greater detail below, the statutory-penalties
claim was added to James’s second amended complaint
when Royal Management failed to comply with his docu-
ment request during discovery.
No. 11-1112 9

letters were technically deficient, Judge Aspen held that
they substantially complied with ERISA requirements
because they supplied James with Concert’s reason for
denying Susan’s claims, thereby allowing James to bring
this suit. Further, Judge Aspen noted that the only
remedy available to James would be to remand the
matter to Concert for further explanation of its denial
of benefits to Susan. And because James had never
argued that he could not comprehend Concert’s deci-
sion, that he was unable to challenge it, or that it was
wrong, Judge Aspen concluded that remanding the
matter to Concert would be a useless formality. Accord-
ingly, Judge Aspen granted summary judgment to
Concert and Royal Management on James’s denial-of-
benefits claim.
Judge Aspen also granted summary judgment to
Concert and Royal Management on James’s breach-of-
fiduciary-duty claims. In doing so, Judge Aspen
rejected two of James’s arguments, but the one most
relevant to this appeal is the argument that Concert and
Royal Management, as co-fiduciaries, had failed to
provide accurate information to Susan in the form of a
summary plan description (“SPD”)3 and a list of net-
work providers. Judge Aspen stated that under this cir-

3
ERISA provides that “a summary plan description of any
employee benefit plan shall be furnished to participants and
beneficiaries as provided in [29 U.S.C.] § 1024 . . . .” 29 U.S.C.
§ 1022(a). We will discuss further SPD requirements below, as
well as their bearing on this case.
10 No. 11-1112

cuit’s case law, a fiduciary’s failure to provide accurate
information is only cognizable under extraordinary
circumstances; namely, bad faith or active concealment
on the part of Concert and Royal Management, or detri-
mental reliance on his part. Because James failed to dem-
onstrate such extraordinary circumstances, Judge Aspen
found that summary judgment was appropriate.
But Judge Aspen refused to grant summary judgment
to Royal Management on James’s statutory-penalties
claim. Judge Aspen noted that the documents that
Royal Management had produced did not constitute a
valid SPD, and thus that James might be entitled to statu-
tory penalties. But because James had not yet moved
for summary judgment on that issue, Judge Aspen
ordered supplemental briefing on whether James was
entitled to statutory penalties both for Royal Manage-
ment’s failure to produce an SPD and for its failure to
produce a copy of the group policy.
Following Judge Aspen’s order, James immediately
filed a motion for reconsideration. In that motion,
James contended that the district court failed to take
into account our decision in Kenseth v. Dean Health Plan,
Inc., 610 F.3d 452 (7th Cir. 2010), as well as a case that was
then pending before the Supreme Court, Cigna Corporation
v. Amara, 131 S. Ct. 1866 (2011). James also specifically
protested the district court’s failure to address the fact
that he placed two phone calls to Concert on the day
Susan was admitted to Rush University Hospital and re-
ceived no warning that Rush University Hospital was
out-of-network. This, according to James, was a breach
No. 11-1112 11

of fiduciary duty. Judge Aspen distinguished Kenseth on
its facts and found Amara to be inapposite. Additionally,
Judge Aspen noted that James failed to raise the argu-
ment in his responsive memorandum that Concert
breached its fiduciary duty by failing to provide him
with information during the two phone calls on April 7,
2006, and, therefore, that the argument was waived.
After Judge Aspen issued his orders, the case was
transferred to Judge Gary S. Feinerman for resolution on
James’s statutory-penalties claim. Judge Feinerman dis-
posed of the case by ordering Royal Management to pay
$5,880 in statutory damages. James appeals the district
court’s grant of summary judgment on his denial-of-
benefits and breach-of-fiduciary-duty claims, as well as
the court’s calculation of his statutory damages award.

II.
We review the district court’s granting of summary
judgment de novo. Ruiz v. Cont’l Cas. Co., 400 F.3d 986, 989
(7th Cir. 2005). In doing so, we must construe all facts
and draw all inferences in favor of the nonmoving
party. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651,
653 (7th Cir. 2010). We will affirm if “the movant
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). Additionally, we
review a district court’s statutory damages award under
29 U.S.C. § 1132(c) for an abuse of discretion. Fenster
v. Tepfer & Spitz, Ltd., 301 F.3d 851, 858 (7th Cir. 2002).
12 No. 11-1112

A. Denial-of-Benefits Claim
James contends that the district court erred in
granting both Royal Management’s (on behalf of the
Royal Plan) and Concert’s motions for summary judg-
ment on his denial-of-benefits claim. As we noted above,
this claim stems from Concert’s denial of the Killians’
request to pay out-of-network medical expenses both
on initial review and by the Appeals Committee. Impor-
tantly, it is undisputed that Concert, as the fiduciary
and claims review administrator, had “full and exclusive
discretionary authority” to interpret the Royal Plan’s
provisions and make coverage and benefit decisions.
Thus, we review Concert’s decision to deny benefits
under the deferential arbitrary-and-capricious standard.
Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th
Cir. 2005). Under this standard that is entitled to
great deference, “we cannot overturn a decision to deny
benefits unless it is ‘downright unreasonable.’ ” Ruiz, 400
F.3d at 991 (quoting Blickenstaff v. R.R. Donnelley & Sons
Co., 378 F.3d 669, 677 (7th Cir. 2004)). Therefore, the
“ ‘insurer’s decision prevails if it has rational support in the
record.’ ” Semien v. Life Ins. Co. of N. Am., 436 F.3d 805,
812 (7th Cir. 2006) (quoting Leipzig v. AIG Life Ins. Co., 362
F.3d 406, 409 (7th Cir. 2004)).
James argues that Concert’s decision was arbitrary
and capricious because there is nothing in the rec-
ord that establishes that Susan received treatment from
an out-of-network provider. Specifically, James com-
plains that the plan documents that he received from
the Royal Plan are contradictory and do not contain a
No. 11-1112 13

list of network providers. Therefore, James argues, Con-
cert’s decision to deny Susan’s claims lacked rational
support in the record.
James’s first argument—that he received plan docu-
mentation with contradictory information—focuses on
two documents in particular: a Certificate of Insurance
and an Employee Benefits Summary. The main issue,
James contends, is that the Certificate of Insurance and
the Employee Benefits Summary do not call Susan’s
plan by the same name. The Certificate of Insurance
refers to the plan as the “SELECT provider network,”
while the Employee Benefits Summary dubs the plan
the “PHCS Open Access” network. Given this contra-
dictory information, James questions how Concert could
discern whether Susan’s treatment at Rush University
Hospital was conducted by in- or out-of-network pro-
viders. In other words, James argues that this apparent
conflict means that Concert’s decision to deny Susan
benefits was not rationally related to the record.
There is no conflict. The Certificate of Insurance and
the Employee Benefits Summary do not refer to different
networks. A cursory reading of the Certificate of
Insurance clearly shows that the “SELECT provider
Network” referred to is not the name of a specific net-
work. Rather, that phrase alerts the insured to insert
the name of the provider network that the insured “se-
lected.” 4 The supporting documentation plainly shows

4
For example, the first sentence in the introductory “Notices”
section reads: “SELECT provider Organizations are networks of
(continued...)
14 No. 11-1112

that the network Susan selected was the PHCS Open
Access network. In the Certificate of Insurance packet
that the Killians had in their possession, Susan’s plan
code is clearly identified as SO35. Further, the Employee
Benefits Summary identifies Susan’s network as the
PHCS Open Access network and also lists—on the very
same page—the three different benefit plan options
that are available under that network. Susan’s plan
code, SO35, is listed as one of those plan options. And
most convincingly, Susan’s insurance card—the same
card from which James gleaned Concert’s customer
service telephone number before placing two calls on
April 7, 2006—clearly identifies her network as the
PHCS Open Access network while listing her group code
as SO35. Thus, when taken as a whole, the documenta-
tion shows that Concert could have readily discerned
which health plan Susan chose and to which network
she belonged at the time Concert made its decision to
deny her benefits.
Second, James argues that because there is no list of
providers in the record, Concert could not have made a
rational decision that Susan’s treatment by doctors at

4
(...continued)
Hospitals, Qualified Treatment Facilities, Qualified Practitio-
ners, and other providers that are contracted to furnish, at
negotiated fees, medical Services for Employees (and their
covered Dependents) of participating Employers.” There is
nothing in this sentence that points to a specific network
provider; it is obviously intended to act as a boilerplate ex-
planation of how the network-provider system works.
No. 11-1112 15

Rush University Hospital was out-of-network. It is true
that the record does not include a network-provider
list. Concert admits as much in its brief. Therefore,
James asks us to remand this issue for further develop-
ment of the record and a final determination. See Gallo
v. Amoco Corp., 102 F.3d 918, 923 (7th Cir. 1996), cert. denied,
521 U.S. 1129 (1997) (“The remedy when a court or
agency fails to make adequate findings or to explain
its grounds adequately is to send the case back to the
tribunal for further findings or explanation.”).
We will not remand, however, where doing so would
be a “useless formality.” Schleibaum v. Kmart Corp., 153
F.3d 496, 503 (7th Cir. 1998) (citing Wolfe v. J.C. Penney
Co., 710 F.2d 388, 394 (7th Cir. 1983)). Concert has con-
sistently maintained that Susan’s treatments were out-of-
network and James has never argued that Rush
University Hospital, Dr. Bonomi, or Dr. Barnes were
actually in Susan’s network. In fact, at oral argument
James’s counsel stated that, if this issue were remanded,
he “suspected” that the claims review administrator
would conclude that Susan’s treatment at Rush
University Hospital was out-of-network. Accordingly,
we affirm the district court’s holding that Concert’s
denial of benefits was not arbitrary and capricious.5

5
The dissent contends that, because “Mr. Killian now seeks
judicial review of [Concert’s] substantive determination,” we
must remand for a definitive finding that Susan’s providers
were actually out of network. But that merely begs the question
of whether such a remand is necessary. Again, James has never
(continued...)
16 No. 11-1112

B. Breach-of-Fiduciary-Duty Claim
James argues that Concert and Royal Management
breached their fiduciary duties in two ways: first, by not
providing Susan with an SPD; and second, by failing to
apprise James that Rush University Hospital was not in
Susan’s network despite James’s two phone calls to
Concert on April 7, 2006. In short, James alleges that
Concert and Royal Management breached their fiduciary
duties by failing to make required disclosures. See
Mondry v. Am. Family Mut. Ins. Co., 557 F.3d 781, 808 (7th
Cir. 2009) (“[W]hen a fiduciary fails to make the types of
disclosures expressly required by the statute, it has
breached its fiduciary duty to the plan beneficiary . . . .”).6

5
(...continued)
argued that Susan’s providers were actually in her network, and
his counsel admitted that any remand on the issue would likely
lead to an unfavorable outcome. If there were any likelihood
that Susan’s providers were actually in her network, there is
no doubt that James would have vigorously pressed that
argument. He has not done so. Nevertheless, because we are
remanding the case anyway (see section II.C below), we will
accommodate our dissenting colleague and direct both
counsel to submit a stipulation concerning whether Rush
University Hospital, Dr. Barnes, and Dr. Bonomi were
within Susan’s provider network. If counsel are not able to
agree on a conclusive stipulation, the district court should
resolve this issue on remand.
6
We have previously held that, “while there is a duty to
provide accurate information under ERISA, negligence in
(continued...)
No. 11-1112 17

At the outset, we note Judge Aspen’s holding that James
first raised one of the two arguments in support of his
breach-of-fiduciary-duty claim (namely, the argument
that Concert breached its fiduciary duty when its rep-
resentatives failed to apprise him that Rush University
Hospital was not in Susan’s network despite James’s
two phone calls to Concert on April 7, 2006) in his
motion for reconsideration. Although Judge Aspen
held that James waived this argument because he first
raised it in his motion for reconsideration, Judge Aspen
also went on to rule on the merits. On appeal, however,
Concert did not argue that James had waived the argu-
ment, and so it is arguable that Concert has now
waived any waiver argument that it might have had.
Therefore, we will bypass the waiver issue altogether
and will address both of James’s arguments only on
the merits.
ERISA requires a plan fiduciary to act “with the care,
skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the

6
(...continued)
fulfilling that duty is not actionable.” Vallone v. CNA Fin. Corp.,
375 F.3d 623, 642 (7th Cir. 2004). Under this rule, James’s claim
would likely fail because he has not shown that Concert and
Royal Management “purposefully intended to confuse plan
participants.” Id. But we have recently counseled that such
“broad statements . . . must not be read too broadly; although
negligent misrepresentations are not themselves actionable,
the failure to take reasonable steps to head off such misrep-
resentations can be actionable.” Kenseth, 610 F.3d at 471.
18 No. 11-1112

conduct of an enterprise of a like character and with
like aims.” 29 U.S.C. § 1104(a)(1)(B). To establish a breach
of fiduciary duty, James “must prove (1) that defendants
are plan fiduciaries; (2) that defendants breached their
fiduciary duties; and (3) that their breach caused some
harm to [him].” Kannapien v. Quaker Oats Co., 507 F.3d
629, 639 (7th Cir. 2007) (citations omitted). If James can
establish such a claim, he may then avail himself of
ERISA’s “award of equitable relief . . . to a plan participant
suing on h[is] own behalf for breach of fiduciary duty.”
Kenseth, 610 F.3d at 464 (citing Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002)).7
Concert and Royal Management have both conceded
that they were plan fiduciaries under ERISA. See 29 U.S.C.

7
In the past, we have held “that technical violations of
ERISA’s notification requirements, without a showing of bad
faith, active concealment, or detrimental reliance, do not state
a cause of action.” Andersen v. Chrysler Corp., 99 F.3d 846, 859
(7th Cir. 1996). But in a recent decision, the Supreme Court has
stated that ERISA’s allowance for equitable remedies may be
available in the absence of a fiduciary’s malfeasance, or a
beneficiary’s detrimental reliance. See Cigna Corporation v.
Amara, 131 S. Ct. 1866 (2011). In Amara the Court held that,
although the requisite showing of “actual harm may sometimes
consist of detrimental reliance, . . . it might also come from the
loss of a right protected by ERISA or its trust-law antecedents.”
Id. at 1881. This will undoubtedly change the landscape of our
ERISA equitable-remedies case law going forward. We need
not discuss the ramifications of Amara here, however, because
James fails to demonstrate that any breach on the part of
Concert and Royal Management actually caused his harm.
No. 11-1112 19

§§ 1002(21)(A) (defining a plan fiduciary), 1105(a)
(setting forth liability of a co-fiduciary). Additionally, it
is evident from the record that the Killians incurred
harm, namely, the approximately $80,000 in medical bills
owed by Susan’s estate. This then leaves us to ponder
the questions of whether Concert and Royal Manage-
ment breached a fiduciary duty owed to Susan, and, if
so, whether such a breach caused the harm.
We begin with James’s contention that Susan was
harmed by Concert and Royal Management’s failure
to provide an SPD. ERISA expressly requires a plan
administrator to furnish an SPD to each plan participant.
29 U.S.C. § 1021(a). Plan administrators must furnish
the SPD within 90 days after a participant enrolls in
the plan. Id. § 1024(b)(1)(A). Among other requirements,
SPDs for group health plans like the Royal Plan
must include “provisions governing the use of network
providers, the composition of the provider network, and
whether, and under what circumstances, coverage is
provided for out-of-network services . . . .” 29 C.F.R.
§ 2520.102-3(j)(3); see also 29 U.S.C. § 1022 (describing
the required disclosures of an SPD). Given these provi-
sions, it is obvious that SPDs play an important role
in informing ERISA beneficiaries about their benefits.
And as we have noted, “[t]he most important way in
which the fiduciary complies with its duty of care is
to provide accurate and complete written explanations
of the benefits available to plan participants and bene-
ficiaries.” Kenseth, 610 F.3d at 471. Concert and Royal
Management admit that they failed to provide Susan
with an SPD and, accordingly, they breached their fidu-
ciary duty to her.
20 No. 11-1112

Yet James must still show that this breach of fiduciary
duty caused Susan’s harm. Concert and Royal Manage-
ment claim their breach did not harm Susan because
she would have sought treatment from Dr. Bonomi,
Dr. Barnes, and Rush University Hospital even if she
had received an SPD. Clearly Susan made an appoint-
ment at Rush University Hospital and with Dr. Bonomi
several days before checking in at the hospital on
April 7, 2006. Dr. Bonomi referred her to Dr. Barnes who
quickly diagnosed a death-threatening brain tumor and
operated on her soon thereafter. As noted earlier, James
concedes that he and Susan would have sought a
second opinion from Dr. Bonomi regardless of whether
he was in Susan’s network. Further, he concedes that
he made the appointment and checked in at Rush Uni-
versity Hospital without first attempting to determine
whether that facility was in Susan’s network. Based on
this record, a reasonable fact finder could only conclude
that James and Susan would have sought treatment
from the doctors at Rush University Hospital regardless
of whether Susan had been issued an SPD. Thus, James
has not created a triable issue of fact over whether
Concert and Royal Management’s failure to provide an
SPD caused his harm.
James next argues that he was harmed as a result of
his reliance on the two phone conversations he had with
Concert representatives on April 7, 2006. Specifically,
James contends that the failure of the Concert representa-
tives to tell him that Rush University Hospital was out
of Susan’s network caused his harm. For the purposes
of this appeal, we are assuming that James did not
No. 11-1112 21

waive this argument, yet he still cannot succeed on the
merits.
The district court concluded that James called Concert
only to report that Susan was being admitted to Rush
University Hospital—not to confirm coverage. James
disputes this conclusion on appeal, pointing to his testi-
mony wherein he avers that he called two different toll-
free numbers on Susan’s insurance card. Because one of
the numbers listed on Susan’s card is a number used to
determine a provider’s network participation, James
argues that a fact finder could infer that he called to
confirm that Rush University Hospital was a member of
Susan’s network.
James attempts to bolster his argument by pointing
to Kenseth, where the plaintiff called his insurance com-
pany to confirm coverage before undergoing surgery,
was given verbal approval by the company’s representa-
tive, and yet was subsequently denied coverage. Kenseth,
610 F.3d at 459-60. In that case, we stated that, “by sup-
plying participants and beneficiaries with plan docu-
ments that are silent or ambiguous on a recurring topic,
the fiduciary exposes itself to liability for the mistakes
that plan representatives might make in answering ques-
tions on that subject.” Id. at 472. Accordingly, we reversed
the district court’s grant of summary judgment on the
plaintiff’s breach-of-fiduciary-duty claim. Id. at 483.
Here, James asks us to do likewise.
We recognize that a fiduciary’s duty to disclose is
broad. As we have stated elsewhere, “ ‘once an ERISA
beneficiary has requested information from an ERISA
22 No. 11-1112

fiduciary who is aware of the beneficiary’s status and
situation, the fiduciary has an obligation to convey com-
plete and accurate information material to the bene-
ficiary’s circumstance, even if that requires conveying infor-
mation about which the beneficiary did not specifically in-
quire.’ ” Kenseth, 610 F.3d at 466 (emphasis in original)
(quoting Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833,
845-46 (6th Cir. 2003)). Moreover, “[r]egardless of the
precision of his questions, once a beneficiary makes
known his predicament, the fiduciary ‘is under a duty
to communicate . . . all material facts in connection with
the transaction which the trustee knows or should
know.’ ” Id. at 467 (quoting Restatement (Second) of
Trusts § 173, cmt. D (1959)).
Implied in this standard, however, is the requirement
that the beneficiary at least put the fiduciary on notice
that he is in some sort of “predicament.” Thus, regardless
of which phone number James actually called, at bottom
his claim rests on the substance of his conversations
with the Concert representatives on April 7, 2006. Unlike
the plaintiff in Kenseth, who, as instructed by plan docu-
ments, called his insurance company and questioned
a customer service representative about whether a par-
ticular procedure was covered by his plan, James did not
ask Concert’s representatives about whether Rush Univer-
sity Hospital was in Susan’s network. Id. at 477.
As noted above, Susan was admonished by plan docu-
ments in her possession to call Concert to confirm that
any treatment she received, or health provider that
she visited, was covered by her plan. Neither of James’s
No. 11-1112 23

conversations with the Concert representatives can
be construed as seeking such confirmation. James’s
first conversation was highlighted by the Concert rep-
resentative’s alleged statement to “go ahead with
whatever had to be done.” But this statement was obvi-
ously not an authorization for Susan’s admission to
Rush University Hospital or for her subsequent treat-
ment. Significantly, at the point the representative made
the statement, she did not even know the name of the
hospital to which James was referring. And regardless of
what the representative might have meant by her state-
ment, it is obvious that James did not take her at her
word. As James testified at his deposition regarding
that first call, “we never determined anything.” That is
precisely why James called back later. Thus, if James
did not himself believe that the representative’s state-
ment was an authorization for Susan’s treatment, no
reasonable juror could construe the statement as an
authorization either.8

8
The dissent reflects that James’s statement that “we never
determined anything” might be construed as something he “has
come to realize in the years since this call,” that nothing
was resolved during the first phone call. (Dissent Op. at 51.)
This is something neither we nor a jury can infer. We may not—
nor may we allow a jury to—translate Killian’s thoughts based
on his statement made while testifying at his deposition
regarding what he believed at the time he spoke to the first
agent on April 7, 2006. Without an express statement that
shows that Killian has since come to believe that he and the
representative never determined anything, we must accept
(continued...)
24 No. 11-1112

James’s second conversation with Concert amounted
to nothing more than a notification that Susan had been
admitted to Rush University Hospital. He did not
ask any questions or communicate to the Concert rep-
resentative what kind of treatment Susan was about to
undergo or the doctor or doctors who would provide
that treatment. James admits that the statements he
made during the second call were brief and that he initi-
ated that conversation by dialing the customer ser-
vice/utilization review number—not the provider-partici-
pation number that he had previously dialed. If James
had indicated concern about whether Rush University
Hospital was in- or out-of-network, he could have
dialed the provider-participation number (as he had
done originally) and sought the requisite information
from a Concert representative. Or he could have ex-
pressed his concern to the second representative he
called and she could have switched him to the proper
source. He did neither.
James’s statements during his short conversations with
the Concert representatives do not trigger Concert’s
fiduciary duty. We would have to significantly embellish
the threadbare record before us to allow for a possible
finding that James put Concert on notice of his “predica-
ment.” The case law simply does not support a blanket
requirement that a fiduciary turn every vague exchange,

8
(...continued)
Killian’s testimony under oath as conveying what he believed
at the time the incident occurred.
No. 11-1112 25

such as the phone calls between James and Concert in
this case, into a quest to uncover some kind of harm
that might befall a beneficiary. Therefore, Concert did
not breach its fiduciary duty by failing to apprise him
that Susan’s treatment at Rush University Hospital was
not covered by her plan.
We also note that, at a more fundamental level, James’s
reliance on Kenseth undermines his claim. In that case,
we drew a distinction between instances when a fiduciary
“supplie[s] participants and beneficiaries with plan
documents that are silent or ambiguous on a recurring
topic,” and instances “when the plan documents are
clear and the fiduciary has exercised appropriate over-
sight over what its agents advise plan participants and
beneficiaries as to their rights under those documents.”
Id. at 472. In the former context, “the fiduciary exposes
itself to liability for the mistakes that plan representatives
might make in answering questions on the subject.” Id.
In the latter context, a fiduciary “will not be held liable
simply because a ministerial, non-fiduciary agent has
given incomplete or mistaken advice to an insured.” Id.
This case is an example of an instance where plan
documents are clear and the fiduciary has exercised ap-
propriate oversight over its agents. The plan documents
clearly and unambiguously state the name of Susan’s
network. Further, the plan documents are clear on both
the necessity of and means by which a beneficiary
can determine whether a provider is within his or her
network. Our dissenting colleague acknowledges as
much. (Dissent Op. at 42-43.) As noted above, Susan’s
26 No. 11-1112

Employee Benefits Summary, Certificate of Insurance,
and insurance card identified her network as the PHCS
Open Access network. Although she did not have a
provider list, those documents warned Susan that she
should seek treatment from her preferred providers “to
avoid reduced benefit payments.” And the phone
numbers on her insurance card gave her instructions on
how “[t]o determine [p]rovider participation.” Thus, the
Killians had available to them clear instructions by
which they could have determined whether Dr. Barnes,
Dr. Bonomi, or Rush University Hospital were within
the PHCS Open Access network.9
James has also failed to put forth any evidence that
Concert did not properly exercise oversight over its
agents. He argues only that the substance of the tele-
phone conversations that he had with the two Concert
representatives is sufficient to create an inference that

9
Moreover, Susan’s insurance card required her to precertify
“[n]on-emergency admissions . . . no less than 7 days prior to
admission.” Emergency admissions, conversely, “must be
certified within 48 hours.” The Killians followed neither of
these directions, despite clear instruction to the contrary. We
express no opinion on whether Susan’s treatment was an
emergency or a non-emergency because there is no evidence
supporting a determination one way or the other. We thus
respectfully disagree with our dissenting colleague that “a
reasonable trier of fact could conclude that Mr. Killian
believed [that Susan’s surgery] was an emergency proce-
dure for which he was not required to obtain precertifica-
tion seven days in advance.” (Dissent Op. at 52.)
No. 11-1112 27

the two Concert representatives should have alerted
him that Rush University Hospital was not in Susan’s
network. But there is no evidence in the record to
suggest that any such failure on the representatives’ part
was due to a lack of oversight by Concert.
Given these facts, this case is an example of the
instance, envisioned in Kenseth, “when the plan docu-
ments are clear and the fiduciary has exercised appro-
priate oversight over what its agents advise plan par-
ticipants and beneficiaries as to their rights under
those documents.” Id. Accordingly, Concert may not be
held liable for mistaken or incomplete advice rendered
by “ministerial, non-fiduciary agent[s].” Id. Here, James
did not receive any advice during his conversations
with the Concert representatives (or at least any advice
that caused him to act). To the extent that he is tempted
to argue that the first representative’s statement to “go
ahead with whatever had to be done” overcomes the
mistaken-or-incomplete-advice hurdle, we reject that
argument because, as we noted above, James himself
did not believe that the statement gave him authoriza-
tion for Susan’s subsequent treatments. In short, because
this case involved a set of clear, unambiguous plan docu-
ments, and James has not shown that he was given any
advice, let alone something more than “incomplete or
mistaken advice” from a “ministerial, non-fiduciary
agent,” Concert cannot be held liable for a breach of
fiduciary duty.
The failure of Royal Management and Concert to pro-
duce an SPD did not cause the Killians’ harm. Addition-
28 No. 11-1112

ally, we reject James’s argument that Concert breached
its fiduciary duty by failing to notify him during two
phone calls that Rush University Hospital was not in
Susan’s network because James did not give Concert
adequate notice of his predicament. Alternatively, that
argument fails because James failed to follow the clear
instructions of plan documents and has not shown that
he received any advice, let alone mistaken or incom-
plete advice, from Concert’s representatives. Therefore,
Concert did not breach its fiduciary duty and the
district court properly granted summary judgment on
this claim.

C. Statutory Penalties
ERISA requires a plan administrator to, “upon written
request of any participant or beneficiary, furnish a copy
of the latest updated summary plan description, and the
latest annual report, any terminal report, the bargaining
agreement, trust agreement, contract, or other instru-
ments under which the plan is established or operated.”
29 U.S.C. § 1024(b)(4). Further, ERISA requires an ad-
ministrator to comply with such a request within 30 days
or face statutory penalties. Id. § 1132(c)(1)(B). The penalty
may be as much as $110 for each day that the plan ad-
ministrator fails to produce the requested documenta-
tion. 29 C.F.R. § 2575.502c-1. Yet the decision of whether
to impose a statutory penalty and the amount by which
an administrator should be penalized is left to the discre-
tion of the district court. 29 U.S.C. § 1132(c)(1)(B); Ames
v. Am. Nat’l Can Co., 170 F.3d 751, 759-60 (7th Cir. 1999)
No. 11-1112 29

(“Fines under § 1132(c)(1) are not mandatory, even if
there has been a [statutory] violation. . . .”). As noted
above, we review an award of statutory penalties for an
abuse of discretion. Fenster, 301 F.3d at 858.
From the outset, James has maintained that Royal
Management has never provided Susan with an SPD or
a list of network providers. Moreover, James did not have
access to a copy of Susan’s group policy. Therefore, on
April 24, 2008—during the course of litigation—James’s
attorney made a formal request to Royal Management to
produce, inter alia, an SPD and a copy of any health plan
of which Susan was a member. 1 0 In response to James’s
production request, on May 5, 2008, Royal Management
produced a copy of the Certificate of Insurance and the
Employee Benefits Summary. James believed that these
productions did not satisfy the definition of an SPD
and a group policy plan and, therefore, that Royal Man-
agement failed to produce the documentation he
had requested within the ERISA-mandated 30 days.
Accordingly, on March 2, 2009, he filed his second
amended complaint that added a statutory-penalties
claim seeking an award of $110 per day “for the failure
to provide a [SPD] or other plan documents . . . .” Eventu-
ally, on January 7, 2010, Royal Management produced
a copy of the group policy but, to date, it has never pro-
duced an SPD.

10
Royal Management does not dispute that both an SPD and
a copy of a health plan are the types of documents that a
plan administrator is required to provide on request under
§ 1024(b)(4).
30 No. 11-1112

The district court consistently noted that James’s
claim for statutory penalties involved two separate
grounds: (1) Royal Management’s alleged failure to
produce an SPD; and (2) Royal Management’s alleged
failure to produce a copy of the group policy. Indeed, in
denying Royal Management’s motion to dismiss James’s
statutory-penalties claim, the district court (with Judge
Aspen presiding) noted that James’s claim rested on
Royal Management’s alleged failure to produce both an
SPD and a copy of the group policy. Later, after Royal
Management and Concert had moved for summary
judgment on all of James’s claims, the district court speci-
fically rejected Royal Management’s argument that its
production of the Certificate of Insurance and the Em-
ployee Benefits Summary satisfied James’s request for
an SPD. Accordingly, the district court held that Royal
Management had violated 29 U.S.C. § 1024(b)(4)’s re-
quirement to produce an SPD. The district court also
acknowledged that, although the parties did not brief
the issue, James had put forth a second statutory-
penalties claim based on Royal Management’s alleged
failure to produce a copy of the group policy. Thus, the
district court ordered supplemental briefing on the issue
of whether statutory penalties should be awarded
(1) for Royal Management’s failure to produce an SPD,
and (2) for Royal Management’s alleged failure to
produce a copy of the group policy.
Although James moved the district court to reconsider
its summary judgment order, he did not file a motion
for statutory penalties by the court’s supplemental
briefing deadline. Royal Management, however, filed a
No. 11-1112 31

Memorandum in Opposition to the Imposition of Any
Statutory Penalties by its deadline. In that brief, Royal
Management addressed only its alleged failure to pro-
duce an SPD—it did not discuss its alleged failure to
produce a copy of the group policy.1 1 After Royal Man-
agement filed its brief, James filed a Motion for Leave
to File Brief Instanter, arguing that he should be allowed
to submit a brief in support of his statutory-penalties
claims. The district court granted the motion. James’s
brief, filed on August 3, 2010, included arguments for
statutory penalties based on both Royal Management’s
failure to produce an SPD and its failure to produce a
copy of the group policy.
Shortly after James had filed his brief in support of his
statutory-penalties claims, this case was transferred to
Judge Gary S. Feinerman. On December 17, 2010, Judge
Feinerman issued an order awarding James statutory
damages based on Royal Management’s failure to produce
an SPD. That order only addressed James’s argument that
he was entitled to statutory damages because of Royal
Management’s failure to produce an SPD; it said nothing

11
On appeal, Royal Management advances the curious argu-
ment that James never moved for penalties on the basis of
Royal Management’s failure to produce a copy of the group
policy and, therefore, he has waived that issue. This is simply
inaccurate; James has consistently maintained two claims
for statutory penalties throughout this litigation. That Royal
Management addressed only one of James’s claims in its
opposition brief below does not affect James’s ability to
appeal the district court’s decision on his other claim.
32 No. 11-1112

about James’s claim based on Royal Management’s
failure to produce a copy of the group policy. Ultimately,
Judge Feinerman assessed statutory damages in the
amount of $10 per day for 588 days—from May 28, 2009
(the thirty-first day after April 28, 2008, the presumed
date of James’s request for an SPD), to January 7, 2010
(James’s suggested end date).
There are several issues with this formula. First, the
use of April 28, 2008, as the date of James’s request for
an SPD does not comport with the record. We believe
that the record clearly shows the actual request date to
be April 24, 2008, and therefore, on remand, the district
court should begin its calculations using that date. Second,
the district court used January 7, 2010, as the end date
because that is the date James had “suggested.” But that
date is based on an imprecise reading of James’s argu-
ments. James has consistently argued—including in his
supplemental brief in support of his statutory-penalties
claims—that he seeks statutory damages on the basis of
both Royal Management’s alleged failure to produce an
SPD and on its failure to produce a copy of the group
policy. Thus, James argued, he was due two separate
penalty awards: the first, based on the failure to produce
a copy of the group policy, from the thirty-first day after
his April 24, 2008, request, to January 7, 2010, the date
Royal Management produced the group policy; the
second, based on the failure to produce an SPD, from
the thirty-first day after his April 24, 2008, request, to the
date Judge Feinerman’s order was issued because Royal
Management never produced an SPD. The district court
thus improperly calculated the end date by conflating the
No. 11-1112 33

two claims and tying James’s January 7, 2010, requested
end date for the group-policy claim to James’s SPD claim.
Third, and finally, the district court did not mention
James’s statutory-penalties claim based on Royal Manage-
ment’s alleged failure to provide a copy of the group
policy. As we noted above, the district court has discre-
tion in the first instance to decide whether to assess
statutory penalties for a particular infraction at all and,
if so, how much to assess. But the district court may not
overlook a party’s statutory-penalties claim that has
been made consistently throughout the course of litiga-
tion. We have held that a district court abuses its
discretion when it fails to consider an essential factor.
Powell v. AT&T Commc’ns, Inc., 938 F.2d 823, 825 (7th Cir.
1991). The district court failed to consider an essential
factor by overlooking one of James’s statutory-penalties
claims; therefore, we remand for further consideration
and recalculation.

III.
James Killian failed to demonstrate that Concert’s
decision to deny Susan benefits for costs incurred out-of-
network was not rationally related to the record. Further,
although there is no list of network providers in the
record, the district court did not err in refusing to remand
the case for a determination of whether Rush University
Hospital, Dr. Bonomi, and Dr. Barnes were in Susan’s
network because doing so would have been a useless
formality. Nevertheless, because we are remanding this
case anyway, we direct both counsel to submit a stipula-
34 No. 11-1112

tion concerning whether Rush University Hospital,
Dr. Barnes, and Dr. Bonomi were within Susan’s provider
network. If counsel are not able to agree on a conclusive
stipulation, the district court should resolve this issue
on remand.
James also failed to show that Royal Management and
Concert caused his harm when they breached their fidu-
ciary duty by failing to provide him and Susan with an
SPD. Further, we reject James’s argument that Concert
breached its fiduciary duty by failing to inform him
that Susan’s treatment at Rush University Hospital was
out-of-network because James did not provide Concert’s
representatives with adequate notice that he was con-
cerned about the providers’ network status. Alternatively,
because James and Susan failed to follow clear instruc-
tions contained in the plan documents and because
James has not shown that he received any advice, let
alone mistaken or incomplete advice from the Concert
representatives, Concert may not be held liable for a
breach of fiduciary duty. Therefore, the district court
properly granted summary judgment in favor of Royal
Management and Concert on James’s denial-of-benefits
and breach-of-fiduciary-duty claims.
Because the district court improperly conflated James’s
statutory-penalties claims and failed to address one of
his arguments, however, we reverse its grant of summary
judgment against Royal Management and remand for
further proceedings. We will not vacate the $5,880 al-
ready awarded by the district court and paid to James
by Royal Management; rather, we leave it to the district
No. 11-1112 35

court to take that award into account when conducting
its analysis and recalculation on remand. We express
no opinion on the appropriate sanction, if any. For these
reasons, we A FFIRM in part, R EVERSE in part, and R EMAND
for further proceedings consistent with this opinion.

R IPPLE, Circuit Judge, concurring in part and dissenting
in part. I join the majority’s resolution of Mr. Killian’s
claim for statutory penalties, but I am unable to join the
majority’s resolution of the remaining claims. Therefore,
with great respect for the opinion of my colleagues,
I concur in part and dissent in part.

A.
Mr. Killian claims that Mrs. Killian was entitled to
benefits under the Royal Management Corporation
Health Insurance Plan (the “Plan”). As the majority
explains, we review a fiduciary’s decision to deny
benefits under the abuse of discretion standard where,
as here, the plan documents give the “fiduciary discre-
tionary authority to determine eligibility for benefits
or to construe the terms of the plan.” Firestone Tire & Rub-
ber Co. v. Bruch, 489 U.S. 101, 115 (1989). We have
equated this standard with arbitrary-and-capricious
36 No. 11-1112

review. Jackman Fin. Corp. v. Humana Ins. Co., 641 F.3d
860, 864 (7th Cir. 2011). A fiduciary abuses its discretion
if its determination lacks “rational support in the rec-
ord.” Carter v. Pension Plan of A. Finkl & Sons Co. for
Eligible Office Emps., 654 F.3d 719, 725 (7th Cir. 2011).
Mr. Killian argues that Concert Health Plan Insurance
Company (“CHPIC”), the Plan’s administrator for claims
determinations and its ERISA claims review fiduciary,
abused its discretion in two ways. He first asserts that
CHPIC abused its discretion by determining that
Mrs. Killian belonged to the PHCS Open Access network.
He then claims that there is no rational support in the
record for CHPIC’s conclusion that Mrs. Killian’s pro-
viders were out-of-network, no matter how we charac-
terize the network to which Mrs. Killian belonged.1

1
As the majority explains, the district court did not address
this later claim because it did not understand Mr. Killian to be
“argu[ing] that CHPIC’s decision was arbitrary or capricious
on its merits.” R.289 at 14 n.15. However, in opposing CHPIC’s
first motion for summary judgment, Mr. Killian argued that
CHPIC “has not presented any admissible evidence to sup-
port” its assertion that Mrs. Killian’s providers were not in
the PHCS Open Access network. R.86 at 12 (emphasis in
original). He raised the same contention in opposition to
CHPIC’s second motion for summary judgment. See R.263 at 8-
9 (“CHPIC has submitted no evidence that Rush University,
for example, is not part of the . . . PHCS (Open Access)
network . . . .”). He reiterated this point in his motion for
reconsideration. R.290 at 9. It is therefore clear that Mr. Killian
raised this claim adequately.
No. 11-1112 37

I agree with my colleagues that CHPIC did not abuse its
discretion in concluding that Mrs. Killian belonged to the
PHCS Open Access network, and I join the majority’s
analysis of that issue without reservation. However,
I cannot agree with the majority’s determination that
there was rational support in the record for CHPIC’s
determination that the providers in question were
out-of-network. The majority acknowledges that there
is no evidence in the record indicating whether these
providers were part of the PHCS Open Access network.
It follows that there is no rational support—indeed, there
is not any support—in the record for CHPIC’s conclu-
sion that the providers were out of Mrs. Killian’s net-
work. We simply lack the record evidence necessary
to address the question. I therefore favor remanding the
issue to the district court so that CHPIC might supple-
ment the record with the evidence it relied upon in con-
cluding that the providers were out-of-network. CHPIC
itself has consented to such a remand. See CHPIC Br.
12. I see no reason why we should not take it up on
this offer.
Although my colleagues question whether such a
remand is necessary, they permit one to accommodate
my views. I am grateful for this accommodation and, in
the remainder of this section, shall set forth the reason
why I believe such a remand is appropriate.
The majority takes the view that we need not remand
this claim because doing so would be a “useless formal-
ity.” See Schleibaum v. Kmart Corp., 153 F.3d 496, 503
(7th Cir. 1998). I do not believe this principle has any
38 No. 11-1112

application to the issue at hand. When the adequacy of
an administrator’s denial letter is at issue, see 29 U.S.C.
§ 1133, the only remedy generally available is a remand
to the administrator for a more substantial explanation.
Schleibaum, 153 F.3d at 503. Such a remand is not
required, however, if it would be a “useless formality.”
Id. Here, the issue is not whether CHPIC adequately
informed Mr. Killian of its reasons for denying
Mrs. Killian’s claim, but whether CHPIC’s underlying
factual determination has rational support in the rec-
ord. 2 Mr. Killian does not contend that CHPIC failed to
include certain required information in its denial letter;
rather, he seeks a determination that the decision itself
was arbitrary and capricious and that he is therefore
entitled to benefits under 29 U.S.C. § 1132(a)(1)(B).3
This distinction is significant. ERISA’s specific notifica-
tion requirements are designed to ensure that any benefi-

2
Although Mr. Killian did challenge the adequacy of CHPIC’s
denial letters in the district court, summary judgment was
entered in favor of CHPIC on this claim. R.289 at 14-21.
Mr. Killian has not appealed this determination, and it is
accordingly not before us.
3
The majority relies on Mr. Killian’s counsel’s statement that
he “suspected” that CHPIC would determine that the pro-
viders were out-of-network, if the matter were remanded to
it. Even if ERISA required that the matter be remanded to
CHPIC for further explanation, and even if CHPIC deter-
mined that the providers were out-of-network, as Mr. Killian’s
counsel suspects it would, Mr. Killian then would be entitled
to challenge that determination as an abuse of discretion and
to seek benefits under 29 U.S.C. § 1132(a)(1)(B).
No. 11-1112 39

ciary whose claim is denied has “an explanation of the
denial of benefits that is adequate to ensure meaning-
ful review of that denial” in further administrative pro-
ceedings and in federal court. Halpin v. W.W. Grainger,
Inc., 962 F.2d 685, 689 (7th Cir. 1992). Mr. Killian now
seeks judicial review of CHPIC’s substantive determina-
tion. That review focuses on whether CHPIC had some
rational support for its conclusion. If the matter is as
simple as CHPIC suggests, the district court should be
able to resolve this issue with ease on remand.

B.
Mr. Killian also submits that Royal Management Corpo-
ration (“RMC”) and CHPIC breached their fiduciary
duties by failing to provide Mrs. Killian with a summary
plan description (“SPD”) and by failing to inform him
that Mrs. Killian’s providers were out-of-network during
telephone conversations on April 7, 2006, respectively.
While I rely on reasons different from those articulated
by my colleagues, I agree that summary judgment was
appropriate on the SPD issue. I believe, however, that
we must remand the issue of the adequacy of CHPIC’s
information on the status of Mrs. Killian’s providers.
I shall discuss each of these issues in the following sub-
sections.
1.
CHPIC and RMC are both fiduciaries under ERISA.
Consequently, in fulfilling their duties to Mrs. Killian
and other plan participants they must
40 No. 11-1112

discharge [their] duties . . . solely in the interest of
the participants and beneficiaries and . . . with the
care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man
acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise
of a like character and with like aims.
29 U.S.C. § 1104(a)(1)(B). These duties are analogous to
those of loyalty and care that are imposed upon a trustee
under the common law. See Kenseth v. Dean Health Plan,
Inc., 610 F.3d 452, 466 (7th Cir. 2010). A beneficiary is
entitled to relief for a breach of fiduciary duty if he
proves “(1) that the defendant is a plan fiduciary; (2) that
the defendant breached its fiduciary duty; and (3) that
the breach resulted in harm to the plaintiff.” Id. at 464.

2.
Mr. Killian claims that RMC breached its fiduciary
duty to Mrs. Killian by failing to provide her with an
SPD, as required by 29 U.S.C. § 1021.4 By regulation, each
SPD must contain “a description of . . . the composition
of the provider network.” 29 C.F.R. § 2520.102-3(j)(3).
We have explained that a fiduciary breaches its duty
if it “fails to make the types of disclosures expressly

4
The record indicates that RMC was the Plan’s administrator.
R.259-3 at 77. This designation brings with it the obligation
of furnishing an SPD to the Plan’s participants. See 29 U.S.C.
§ 1021(a).
No. 11-1112 41

required by the statute.” Mondry v. Am. Family Mut. Ins.
Co., 557 F.3d 781, 808 (7th Cir. 2009). The district court
determined properly that Mrs. Killian never received an
ERISA-compliant SPD. I therefore agree with the
majority’s conclusion that RMC breached its fiduciary
duty to Mrs. Killian in this regard. I also agree that
the record does not support a conclusion that the
Killians were harmed by this failure. However, my
analysis of the causation question differs from that of
the majority.
The majority concludes that RMC’s failure to produce
an SPD did not harm Mrs. Killian by relying heavily on
Mr. Killian’s testimony that his wife would have
sought a second opinion from Dr. Bonami “no matter
what.” R.253 at 138-39. The Killians’ admission would
preclude them from arguing that the absence of an SPD
caused them to seek a second opinion from an out-of-
network provider because they admitted that they would
do so regardless of the physicians’ network status. How-
ever, a reasonable trier of fact still could conclude that
Mrs. Killian would not have acquiesced to costly surgery
by the providers if she had known that the providers
were not in her network. Indeed, as I shall explain in
further detail below, a reasonable trier of fact could
conclude that Mr. Killian attempted to determine the
surgery providers’ network status shortly after learning
that his wife required this prompt brain surgery.
That Mrs. Killian was admitted to the hospital for this
unexpected procedure before Mr. Killian contacted
CHPIC does not preclude the distinct possibility that
Mrs. Killian would have considered having another
42 No. 11-1112

provider perform this unexpected surgery once she
and Mr. Killian had been informed adequately that the
contemplated providers were outside the network. Nota-
bly, Mr. Killian called the insurance company before
the surgery, indicating that the Killians were concerned
about whether the surgery would be covered by
Mrs. Killian’s insurance. Consequently, I cannot join the
majority’s analysis on this point.
I nevertheless believe that the majority’s result on
this point should be sustained. Mr. Killian asserts that
his wife incurred nearly $80,000 in out-of-network
medical bills because RMC failed to provide Mrs. Killian
with an SPD, which would have provided her with infor-
mation about how she could ascertain that a certain
provider was within the network. The record does not
support this assertion. Mrs. Killian’s insurance card
stated that she should call a specific number “to
determine Provider participation.” R.82-7 at 2. Mr. Killian
knew that he could call this number to determine a pro-
vider’s network status before Mrs. Killian became ill.
R.253 at 31-32. Furthermore, Mrs. Killian received an
“Enrollment Package” instructing her in multiple places
to call the same number that was listed on her insurance
card to ensure that a provider is in-network. See R.259-5
at 8 (“Please always confirm with the network that the
provider is still participating at the location you
have chosen.”); id. at 10 (“The most accurate, up to date
information can be found by calling the CHP dedicated
No. 11-1112 43

line . . . .” (emphasis in original)).5 There is, therefore, no
evidence that Mrs. Killian incurred these medical bills
because she did not know how to determine whether
they were in her network.

3.
Mr. Killian also claims that CHPIC breached its
fiduciary duty to Mrs. Killian when it failed to inform
him that the providers at Rush University Medical
Center (“Rush”) were out of Mrs. Killian’s network during
two phone calls on April 7, 2006. The majority opinion
suggests that Mr. Killian may have waived this claim
and then rejects the claim on the merits. In my view,
CHPIC has waived this possible waiver, and Mr. Killian
is entitled to further consideration of this claim before
the district court.

a.
The majority notes that Mr. Killian may have waived
any argument premised on these phone calls by failing to
raise the issue in opposition to CHPIC’s motion for sum-
mary judgment. I agree that Mr. Killian’s responsive
memorandum contains no discussion of this claim.

5
Madonna Corbett, RMC’s Human Resources Director,
explained that RMC’s business practice was to provide
new enrollees in the Plan with this information. See R.259-2.
44 No. 11-1112

See R.263.6
Ordinarily, a litigant who fails to raise an argument in
opposition to a properly raised motion for summary
judgment will not be permitted to raise that same argu-
ment thereafter, either in a motion for reconsidera-
tion or on appeal. See Publishers Res., Inc. v. Walker-Davis
Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985). However,
a party waives the waiver by failing to assert it in this

6
Mr. Killian’s complaint does contain sufficient allegations to
put CHPIC on notice of the claim. For instance, Mr. Killian
alleged that he
called Concert Health Plan Insurance Company to
confirm that Rush University was a network provider
under the Concert Health Plan (or Royal Management
Corp. Health Insurance Plan). Concert Health Plan
Insurance Company informed Killian that Rush Uni-
versity was in the Concert Health Plan network or
failed to inform Killian Rush University was not in
the Concert Health Plan network. Killian relied on
these statements or omissions . . . .
R.134 at 10 (setting out RMC’s alleged breaches of fiduciary
duty); see also id. at 12 (incorporating this allegation against
CHPIC). The complaint does not spell out how CHPIC vio-
lated ERISA in these phone calls. However, a plaintiff need
not plead legal theories. Smith v. Med. Benefit Adm’rs
Grp., Inc., 639 F.3d 277, 283 n.2 (7th Cir. 2011). Mr. Killian
elaborated upon this claim in his motion for reconsidera-
tion. See R.290 at 1-5.
No. 11-1112 45

court.7 That circumstance is present in this case. In its
appellate brief, CHPIC asserts that Mr. Killian waived
various arguments by not raising them before the dis-
trict court.8 It says nothing, however, about Mr. Killian
waiving this particular argument. Instead, CHPIC argues
that “[n]o efforts were made by Plaintiff or his wife
to confirm whether any of these providers or treaters
were within the network.” CHPIC Br. 10. It further
claims that “nothing that [it] did or said in furnishing
the information caused specific harm to the Plaintiff.” Id.
By addressing the merits of this claim and failing
to assert the possible waiver, CHPIC has waived
Mr. Killian’s possible waiver.
The closest CHPIC comes to asserting this possible
waiver on appeal is in the portion of its brief titled “Issues
Presented for Review,” where it states: “It is unclear specifi-
cally how Plaintiff can present the issues presented in
his appellate brief, as the issues presented in his appeal

7
See, e.g., Westefer v. Snyder, 422 F.3d 570, 584 n.20 (7th Cir.
2005); Riemer v. Illinois Dep’t of Transp., 148 F.3d 800, 804-05
n.4 (7th Cir. 1998).
8
CHPIC contends that Mr. Killian waived any argument that
CHPIC’s benefit determination was not supported by rational
support in the record. CHPIC Br. 11; accord id. at 13. Although
CHPIC incorporates RMC’s arguments on the fiduciary duty
claims by reference, see id. at 13, RMC similarly fails to raise
the waiver noted by the majority. (While RMC does assert
that Mr. Killian waived certain aspects of his statutory-
penalties claim, RMC Br. 11, it says nothing about the waiver
at issue.)
46 No. 11-1112

were never developed or argued at the District Court
level.” CHPIC Br. 1-2. This statement is insufficient to
raise the waiver point for several reasons. First, it
appears only in the brief’s statement of the issues, not in
the section devoted to legal analysis. See Bob Willow
Motors, Inc. v. Gen. Motors Corp., 872 F.2d 788, 795 (7th Cir.
1989) (holding that an argument raised in one sentence
of a brief’s summary of argument with no citation to the
record or the governing law is waived); see also Am. Int’l
Enters., Inc. v. FDIC, 3 F.3d 1263, 1266 n.5 (9th Cir. 1993)
(holding arguments raised only in a “Statement of Is-
sues” are waived); cf. United States v. Kumpf, 483 F.3d
785, 791 (7th Cir. 2006) (explaining that a party does not
raise adequately an issue on appeal by merely listing it
in the statement of issues). Even if CHPIC could raise
adequately an argument by listing it in the issue state-
ment, it cannot do so with a one-sentence statement
devoid of any citation to the record or governing law.
See Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011);
Perry v. Sullivan, 207 F.3d 379, 383 (7th Cir. 2000).9
For these reasons, I believe that it is appropriate to

9
Finally, to the extent CHPIC was referencing this precise
waiver with its general statement, its argument is built upon a
flawed premise. Although Mr. Killian may have raised this
claim inadequately in the district court, it is incorrect to claim
that this issue “w[as] never developed or argued at the District
Court level.” CHPIC Br. 1-2 (emphasis added). As explained
above, Mr. Killian described the factual basis for the claim in
his complaint and called it to the district court’s attention in
his motion for reconsideration.
No. 11-1112 47

address the merits of this claim despite the possible
waiver.

b.
With respect to the merits of this argument, we have
recognized that “ ‘once an ERISA beneficiary has re-
quested information from an ERISA fiduciary who is
aware of the beneficiary’s status and situation, the fidu-
ciary has an obligation to convey complete and accurate
information material to the beneficiary’s circumstance,
even if that requires conveying information about which the
beneficiary did not specifically inquire.’ ” Kenseth, 610 F.3d at
466 (alteration omitted) (emphasis in original) (quoting
Gregg v. Transp. Workers of Am. Int’l, 343 F.3d 833, 845-46
(6th Cir. 2003)). “Regardless of the precision of his ques-
tions, once a beneficiary makes known his predicament,
the fiduciary is ‘under a duty to communicate . . . all
material facts in connection with the transaction which
the trustee knows or should know.’ ” Id. at 467 (alteration
in original) (quoting Restatement (Second) of Trusts § 173,
cmt. d (1959)). If a fiduciary “suppl[ies] participants
and beneficiaries with plan documents that are silent
or ambiguous on a recurring topic, the fiduciary
exposes itself to liability for the mistakes that plan repre-
sentatives might make in answering questions on that
subject.” Id. at 472. If, however, “the plan documents
are clear and the fiduciary has exercised appropriate
oversight over what its agents advise plan participants
and beneficiaries, the fiduciary will not be held liable
48 No. 11-1112

simply because a ministerial, non-fiduciary agent has
given incomplete or mistaken advice to an insured.” Id.

i.
My colleagues conclude that the plan documents were
clear. However, the Master Group Policy did not set out
which providers were in the PHCS Open Access net-
work. Instead, beneficiaries were instructed to “call
the number listed on the back of [their] medical iden-
tification card[s]” to determine whether a provider
was in-network. R.259-3 at 15. This is much like Kenseth,
where “[t]he one and only course of action [the policy
documents] advised the reader in terms of seeking addi-
tional information as to whether a particular course of
treatment was covered by the [relevant] plan was to
call [the fiduciary]’s customer service line.” 610 F.3d at
477. The majority reasons that because the Master
Group Policy provided “clear instructions by which
[the Killians] could have determined whether [the pro-
viders] were within the PHCS Open Access network,”
the plan documents were sufficiently clear. Majority
Op. 26. Kenseth, however, makes clear that a fiduciary
cannot satisfy its broad fiduciary duty of disclosure
solely by instructing beneficiaries to call and ask for
the material information they are seeking. See 610 F.3d
at 479.
Here, “[t]he [Master Group Policy] encouraged partici-
pants to contact [CHPIC] before undergoing treatment
to determine whether the treatment would be [in-network],
and that is exactly what [Mr. Killian] did.” Id. at 477.
No. 11-1112 49

I would therefore conclude that CHPIC “expose[d] itself
to liability for the mistakes that [its] representatives
might make in answering [Mr. Killian’s] questions on
that subject.” Id. at 472.

ii.
I further believe that a reasonable trier of fact could
conclude that CHPIC was aware (or, at the very least,
that it should have been aware) that Mr. Killian was
attempting to determine whether the physicians who
were about to perform surgery on Mrs. Killian at Rush
were within Mrs. Killian’s network. The front of Mrs.
Killian’s insurance card provides two phone numbers.
The first of the two numbers is for “determin[ing]
Provider participation.” R.82-7 at 2. This was a “dedicated
line” for providing “[t]he most accurate, up to date infor-
mation” regarding provider participation. R.259-5 at 10
(emphasis in original). Because this line was dedicated
to informing beneficiaries whether providers were in-
network, CHPIC knew (or, at the very least, should have
known) that beneficiaries would call this line to deter-
mine a provider’s network status. Mr. Killian called
this number on April 7, 2006. After providing
Mrs. Killian’s name and card number, he said, “we are
here for a second opinion and she is going—they want
to admit her because we already determined the tumor
has to come off.” R.253 at 72; see also id. at 125 (“I said
she was being admitted to the hospital and they were
going to do the [brain] surgery.”). Mr. Killian referred
to Rush as “St. Luke’s,” the name that he had always
50 No. 11-1112

used for this hospital. Id. at 72.1 0 The CHPIC representa-
tive said that she was unable to find a listing under that
name and instructed Mr. Killian to “[g]ive [her] a call
back.” Id. She also said that Mrs. Killian should “go ahead
with whatever had to be done.” Id. at 125. Although
the representative did not directly state that Rush was
in Mrs. Killian’s network, a reasonable trier of fact
could conclude that this representative failed “ ‘to con-
vey complete and accurate information material to
[Mrs. Killian]’s circumstance.’ ” See Kenseth, 610 F.3d at
466 (citation omitted). My colleagues rely heavily on
Mr. Killian’s testimony that he and the agent “never
determined anything” during this phone call in con-
cluding that Mr. Killian “did not take her at her word.”
Majority Op. 23. However, Mr. Killian also testified that
he believed that Mrs. Killian’s surgery would be covered
“[b]ecause nobody ever said these are out-of-network.”
R.253 at 136. Taking these facts in the light most favorable
to Mr. Killian for purposes of summary judgment, a rea-
sonable trier of fact could conclude: (1) that Mr. Killian
was concerned about whether the providers were in-
network; (2) that Mr. Killian called the number that
Mrs. Killian’s insurance card said should be used to
determine provider participation to resolve this ques-
tion; (3) that the operator knew that Mr. Killian was

10
Rush University Medical Center adopted its current name
in 2003. See History, Chicago Hospital Jobs at Rush Univer-
sity Medical Center, http://www.jobsatrush.com/history.htm
(last visited Apr. 12, 2012). Before that, Rush’s name incorpo-
rated the name of a predecessor entity, St. Luke’s. Id.
No. 11-1112 51

seeking this information; (4) that the operator told
Mr. Killian to “go ahead with whatever had to be done,”
even though she knew that she had not been able to
establish the provider’s network status; and (5) that
Mr. Killian left that phone call believing that
Mrs. Killian could “go ahead” with whatever had to be
done because he had followed the instructions on
Mrs. Killian’s insurance card, was told to do so and
received no warning that the “go ahead” was not to
be understood as an authorization.
Although the testimony upon which the majority relies
might be read to suggest that Mr. Killian has come to
realize in the years since this call occurred that the
agent had not definitively authorized the treatment, the
remainder of Mr. Killian’s testimony suggests that,
during the stress of the moment, he believed that he
could rely on the agent’s representation to “go ahead.”
Mr. Killian “should not be penalized because he failed
to comprehend the technical difference between ‘[go
ahead]’ and ‘[the provider is in-network].’ The same
ignorance that precipitates the need for answers often
limits the ability to ask precisely the right questions.”
Kenseth, 610 F.3d at 467 (internal quotation marks omit-
ted). At the very least, the agent should have instructed
Mr. Killian that she was unable to locate an entry in
her system for “St. Luke’s” and that she could make no
representations at that time as to whether the provider
was in-network.
The majority also reasons that Mr. Killian could not
have relied on this instruction to “go ahead” because he
52 No. 11-1112

later called the second number. However, Mr. Killian
testified that, in making the second call, he was calling
“for preadmission,” as he was instructed to by
Mrs. Killian’s insurance card. R.253 at 74. The card said
that “[e]mergency admissions must be certified within
48 hours” and that this second number should be used
to obtain the necessary “UTILIZATION REVIEW.” R.82-7
at 3. Taking these facts in the light most favorable to
Mr. Killian, a reasonable trier of fact could conclude
that Mr. Killian made the second call to obtain the
required “certification,” or “UTILIZATION REVIEW,”
for his wife’s surgery. Having just learned that the
surgical procedure was necessary for his wife to live
longer than a few days, R.253 at 127-28, a reasonable
trier of fact could conclude that Mr. Killian believed
this was an emergency procedure for which he was not
required to obtain precertification seven days in advance.1 1
When Mr. Killian made this second call, he dialed the
second of two numbers on the front of Mrs. Killian’s

11
I do not suggest that Mrs. Killian’s surgery was in fact an
“emergency” for purposes of the policy. The parties have not
addressed this point, and its resolution is therefore unneces-
sary at this stage. Nevertheless, some discussion of the issue
is necessary for two reasons. First, it is important to deter-
mining what a rational trier of fact could make of Mr. Killian’s
phone calls on April 7, 2006. Second, the majority opinion ap-
pears to conclude that the Killians did not follow the pre-
certification instructions on Mrs. Killian’s insurance card.
See Majority Op. 26 n.9. As my discussion of the point re-
veals, however, this conclusion is not compelled by the record.
No. 11-1112 53

insurance card, which was for customer service. As I
have noted earlier, this was the same number that the
instructions on the back of the card said should be
used to certify admission. Thus, Mr. Killian did not “call
[the first representative] back,” as she had instructed.
However, at the summary judgment stage, Mr. Killian’s
decision to call a different number is not fatal to his
claim. There is evidence that CHPIC had encouraged
beneficiaries to use this number for determining pro-
vider participation, as well. Specifically, in the
Master Group Policy, CHPIC instructed beneficiaries
that they “must call the number listed on the back of
[their] medical identification card” in order “[t]o con-
firm that [a] . . . provider is a CURRENT participant
in [the beneficiary’s] provider Network.” R.259-3 at 15
(emphasis added). The back of Mrs. Killian’s insurance
card provides two different phone numbers: the cus-
tomer service number from the front of the card is pro-
vided twice; a vision benefits number is provided once.
See R.82-7 at 3. Therefore, CHPIC should have known
that beneficiaries such as Mr. Killian would be calling
this line to determine whether certain providers were
in their network.
Moreover, the second number that Mr. Killian called
was the correct and apparently the only number that he
could call to obtain the required certification review
with respect to the particular surgical procedure that his
wife was about to undergo. Given his earlier telephone
conversation, a reasonable trier of fact certainly could
conclude that any further information as to whether
the providers were in Mrs. Killian’s network would
54 No. 11-1112

have been provided in the course of this conversation
on authorizing the particular procedure.
Indeed, under these circumstances, CHPIC had an
affirmative obligation to inform Mr. Killian that the
providers Mrs. Killian was about to see were out-of-
network. See Kenseth, 610 F.3d at 466 (“[T]he trustee ‘is
under a duty to communicate to the beneficiary
material facts affecting the interest of the beneficiary
which he knows the beneficiary does not know and
which the beneficiary needs to know for his protection
in dealing with a third person.’ ” (citation omitted)). On
this record, a rational trier of fact could conclude that
this second operator was aware that Mr. Killian’s phone
calls were an effort to confirm two points: (1) that
the health care providers treating his wife were within
the Plan’s network; and (2) that the particular procedures
contemplated for her care were authorized by the Plan.
In this second call, Mr. Killian stated: “I’m trying to get
confirmation that we are going to be—my wife is going
to be admitted to Rush.” R.253 at 73. The representa-
tive laughed and said, “Oh, you mean St. Luke’s,” as if
she were speaking to a person sitting next to her. Id.
The second representative then informed Mr. Killian
that the hospital is known as “Rush Presbyterian.” Id.
At some point, Mr. Killian said that “Susan is going to
be admitted,” and the representative said “[o]kay.” Id.
From her laughter and attempt at humor, a reasonable
finder of fact well might conclude that this second repre-
sentative knew something about Mr. Killian’s prior call.
It would be reasonable to infer that this representa-
tive knew that Mr. Killian had attempted to determine
No. 11-1112 55

whether “St. Luke’s” was in Mrs. Killian’s network in
a prior call to the number for determining provider
participation.
The majority asserts that ERISA does not require a
fiduciary to set about on a “quest to uncover some kind
of harm that might befall a beneficiary.” Majority Op.
25. This statement, however true as a general principle,
hardly characterizes fairly this case. Given the broad
fiduciary duties imposed by ERISA, an insurance
company cannot defeat, as a matter of law, a breach-of-
fiduciary-duty claim by asserting that it was unaware
that an insured was seeking certain material plan infor-
mation when, as in the circumstances presented here,
the insured calls two different numbers that the in-
surance company itself established to provide the sort
of information in question. This is particularly true
when the representatives tell an insured to “go ahead
with whatever ha[s] to be done” while knowing (or at
least having reason to know) that the insured is
confused about this aspect of his plan and is about to
undergo a costly procedure that will not be fully covered.
The majority points out that “there is no evidence
in the record to suggest that any . . . failure on the rep-
resentatives’ part was due to a lack of oversight by Con-
cert.” Majority Op. 27. Assuming, arguendo, the truth
of this assertion, I do not believe this conclusion
entitles CHPIC to summary judgment at this stage.
We have affirmed an entry of judgment against a plan
administrator where the “plan documents . . . failed to
explain adequately” a particular provision and the lack
56 No. 11-1112

of clarity “was then exacerbated by [the fiduciary’s
agents] when [the beneficiary] inquired about her cover-
age.” Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 591
(7th Cir. 2000). In Kenseth, we read Bowerman to establish
that “by supplying participants and beneficiaries with
plan documents that are silent or ambiguous on a recur-
ring topic, the fiduciary exposes itself to liability for
the mistakes that plan representatives might make in
answering questions on that subject.” 610 F.3d at 472
(citing Bowerman, 226 F.3d at 591). Kenseth further
indicated that the principle emerging from Bowerman is
“especially true when the fiduciary has not taken appro-
priate steps to make sure that ministerial employees
will provide an insured with the complete and accurate
information that is missing from the plan documents
themselves.” Id. at 472 (emphasis added).
Regardless, CHPIC has not yet satisfied its initial
burden on summary judgment of “show[ing] that there
is no genuine dispute as to any material fact,” Fed. R. Civ.
P. 56(a), as to the appropriateness of the steps it took
to make sure that its ministerial employees provided
insureds with the complete and accurate information
that cannot be found in the plan documents themselves.
If it ever does, Mr. Killian then would have the burden
of coming forward with evidence to create a genuine
fact issue on this point.1 2

12
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“Of
course, a party seeking summary judgment always bears the
(continued...)
No. 11-1112 57

iii.
If a beneficiary establishes that a fiduciary has
breached its duty, ERISA authorizes injunctions and “other
equitable relief.” See 29 U.S.C. § 1132(a)(3); Smith v. Med.
Benefit Adm’rs Grp., Inc., 639 F.3d 277, 283 (7th Cir. 2011).
When reversing summary judgments, we frequently
remand the actions to the district court so that the parties
can give more attention to the remedial question. 1 3 That

12
(...continued)
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”);
Logan v. Commercial Union Ins. Co., 96 F.3d 971, 979 (7th Cir.
1996) (“Only after the movant has articulated with references
to the record and to the law specific reasons why it believes
there is no genuine issue of material fact must the nonmovant
present evidence sufficient to demonstrate an issue for trial.”).
Of course, in an ordinary case, we would hold that a litigant
in Mr. Killian’s position waived this legal argument by failing
to articulate it once CHPIC moved for summary judgment.
See Teumer v. Gen. Motors Corp., 34 F.3d 542, 546 (7th Cir.
1994). As explained above, however, CHPIC has failed to
avail itself of the protections of our waiver rule. I would
therefore conclude that this claim is alive and that the burden
to establish a genuine issue of material fact on this point has
yet to be placed properly upon Mr. Killian.
13
See, e.g., Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 483
(7th Cir. 2010) (remanding where the plaintiff “may be able
(continued...)
58 No. 11-1112

approach is particularly appropriate here. I would there-
fore remand this claim to the district court in order to
afford Mr. Killian the opportunity to explain in greater
detail why he believes he is entitled to equitable relief
under § 1132(a)(3).

iv.
Today’s decision will have a significant impact on two
levels. To the plaintiff, it deprives him of the protection
of a federal statute designed specifically to ensure that
benefits plan fiduciaries take the steps they would take
if their own economic welfare was at stake. No reason-
able plan fiduciary can maintain that he would have
allowed himself to be treated as Mr. Killian maintains
that he and his wife were treated during a time of
great medical need. On a broader level, today’s holding
suggests a departure from our long-standing view
that ERISA’s incorporation of common law fiduciary
standards brings to federal benefits law the high degree
of loyalty and care by which those ancient fiduciary
principles have protected countless generations of English
and American trust beneficiaries. See Kenseth, 610 F.3d at
466 (“This duty of course includes an obligation not
to mislead a plan participant or to misrepresent the
terms or administration of an employee benefit plan,
including an insurance plan. But the duty is not limited

13
(...continued)
to identify a form of equitable relief that is appropriate to
the facts of this case”).
No. 11-1112 59

to that negative command. It includes an affirmative
obligation to communicate material facts affecting the
interests of beneficiaries. This duty exists when a bene-
ficiary asks fiduciaries for information, and even when
he or she does not.” (citations omitted) (internal quota-
tion marks omitted)); see also Bixler v. Cent. Pa. Teamsters
Health & Welfare Fund, 12 F.3d 1292, 1300 (3d Cir. 1993)
(“Th[e] duty to inform is a constant thread in the rela-
tionship between beneficiary and trustee; it entails not
only a negative duty not to misinform but also an af-
firmative duty to inform when the trustee knows that
silence might be harmful.”). Because I believe that today’s
decision frustrates the manifest intent of Congress that
Americans have such protection, I respectfully dissent
from this part of the court’s holding.

Conclusion
For the foregoing reasons, I concur in part and dissent
in part.

4-19-12